Electronic copy available at httpssrncomabstract=2712338
Working Paper No 022016| January 2016
Trade Dispute Settlement in the Tripartite Free Trade Area
Clarence Siziba University of Bern World Trade Institute
clarencesizibawtiorg
Abstract
In 2015 the Heads of State and Government of COMESA the EAC and SADC agreed to establish the Tripartite Free Trade Area (TFTA) extending from Cape to Cairo encompassing all twenty-six members of the three groupings While the TFTA negotiations are ongoing it is necessary that member states are aware of their rights and obligations as well as the nature and power of the organs of the TFTA This paper analyses dispute resolution bodies of the three regional economic communities making up the large trade bloc in order to distil the most salient features which allow for effective dispute resolution The study shows that it is necessary that regional judiciaries be allowed to operate independently and efficiently without undue interference from political elites otherwise they stand to fail in executing their mandate
Research for this paper was funded by the Swiss State Secretariat for Economic Affairs under the SECO WTI Academic Cooperation Project based at the World Trade Institute of the University of Bern Switzerland
SECO working papers are preliminary documents posted on the WTI website (wwwwtiorg) and widely circulated to stimulate discussion and critical comment These papers have not been formally edited Citations should refer to a ldquoSECO WTI Academic Cooperation Projectrdquo paper with appropriate reference made to the author(s)
Electronic copy available at httpssrncomabstract=2712338
2
II INTRODUCTION
Regional integration refers to the outcome of processes including cooperative
arrangements the implementation of intergovernmental treaties and market-led
processes through which economies of countries in a region become more closely
interconnected1 These outcomes are essential to building markets creating robust
and diverse economies increasing opportunities for growth and attracting new
sources of investment finance Regional integration allows for economies of scale
promotes intra-regional trade and ensures that regional bodies have a greater role in
global economic governance If well and truly grounded in the socio-economic
realities in which member states operate regional integration is more likely to
succeed and enhance the trade liberalisation agenda2 However it can pose serious
dangers especially given the multiple membership regional integration models
prevailing at present These multiple commitments can also lead to jurisdictional
conflict and non-compliance
lsquoThe presence of multiple regional courts with overlapping functions and
jurisdiction may by itself defeat the whole purpose of establishing the
respective regional organisations as economic zones to spearhead and
accelerate the growth and economy of the people It is not an incentive
to foreign investors who prefer certainty and predictability of decisions
in the event a dispute emerges calling for judicial intervention In this
kind of situation there is no certainty or predictability especially given
1 African Development Bank Group (ADB Group) ldquoRegional Integrationrdquo
httpwwwafdborgentopics-and-sectorstopicsregional-integration (Accessed 26022015) 2 Donald A Calvert lsquoHow the Multilateral Trade System Under the World Trade Organisation is
Attempting to Reconcile the Contradictions amp Hurdles Posed by Regional Trade Agreements An Analysis of Article XXIV of the General Agreement on Tariffs amp Tradersquo (Unpublished Masters Thesis George Mason University 2002)
3
that one is not even sure of which court one should go to if a dispute
arisesrsquo3
The overriding role of dispute settlement bodies in regional integration initiatives is to
foster predictability transparency accountability and participation of all member
states as well as individuals conducting business in them Sound governance and
remedial measures are necessary for regional integration and development Clarity
around trade rules breeds a culture of trust which in turn facilitates greater trade
while the availability of a platform to protect the rights of investors creates
opportunities for further investment
This paper consists of five parts The first section introduces the subject of regional
integration at the multilateral and examines why countries establish regional
economic communities In essence it details the arrangements that lead to the
formation of these agreements and how this impacts on global trade relations Part
two continues in the vein of background material through a discussion of the African
Economic Community (AEC) and how it is to be achieved before zooming in on the
formation of the Tripartite Free Trade Area (TFTA) It principally lays the contextual
basis for the establishment of the TFTA within the broader debate of the
establishment of the AEC The third unit provides an assessment of the problems
and prospects faced by regional economic communities in their attempts to address
disputes at the regional level It raises pertinent issues affecting the manner in which
disputes can be resolved Part four draws attention to the dispute resolution
mechanisms of COMESA SADC and the EAC as well as that of the soon to be
established Tripartite Dispute Settlement Body The aim is to draw out the salient
3 John Eudes Ruhangisa lsquoThe East African Court of Justicerdquo in Rok Ajulu The Making of a Region
The Revival of the East African Community (2005) 107
4
features of dispute settlement in these communities to inform future trade dispute
settlement measures Finally the fifth section consolidates the points raised and
uses them as a basis for providing concrete recommendations for the TFTA dispute
settlement mechanism
III THE MULTILATERAL TRADING SYSTEM AND REGIONALISM
(a) WTO Rules on Regional Integration
The legal provisions which regulate the formation and subsistence of regional trade
agreements lie in a number of WTO Agreements the General Agreement on Tariffs
and Trade (GATT) the General Agreement on Trade in Services (GATS) and the
Agreement on Differential and More Favourable Treatment Reciprocity and the
Fuller Participation of Developing Countries (the Enabling Clause) Article XXIV of
the GATT sets out how RTAs should operate There are three major obligations in
this regard both internal and external trade requirements as well as a notification
responsibility In order for an RTA to pass WTO muster it should seek to reduce
substantially all barriers to trade amongst its members4 Barriers to trade in respect
of non-RTA members who are also WTO members must not be more restrictive than
those obtaining prior to the conclusion of the RTA5The WTO has to be notified of the
intention to create an RTA subject to review by the Committee on Regional Trade
Agreements (CRTA)6
The Enabling Clause provides for special and differential treatment for developing
countries as long as the notification procedure is followed In addition no added
4 Article XXIV8 of the GATT 1994
5 Article XXIV5 of the GATT 1994
6 Article XXIV7 of the GATT 1994
5
barriers to trade should be created following such treatment With respect to trade in
services Article V of the GATS provides for essentially the same requirements as
obtain under GATT Article XXIV However arguments have been raised to the effect
that the GATS is more lenient in its regional integration requirements than the
GATT7 While it is useful to have these arrangements in place they are not without
their faults The CRTA has never come to a consensus regarding the compliance of
any RTA which it has been asked to take notice of8 In addition the notification
procedure does not seem to be working well For instance the Tripartite Free Trade
Area is under negotiation in Africa yet no notification procedures have as yet been
implemented Members often notify the CRTA after the formation of the RTA or
choose not to make a notification at all9 This limits the formation of RTAs in that the
procedure is only effective insofar as states choose to comply However attempts
have been made to improve the rules pertaining to regional trade agreements10
Nevertheless the prescriptions described above are useful in delineating the limits
within which an RTA will be recognised Despite its shortcomings the monitoring and
compliance mechanism offered by the CRTA is necessary in reigning in rogue
elements in the multilateral trading system
7 See Petros Constantinos Mavroidis lsquoDo Not Ask Too Many Questions The Institutional
Arrangements for Accommodating Regional Integration Within the WTOrsquo in E Kwan Choi and James C Hartigan (eds) Handbook of International Trade (2004) for a more detailed discussion 8 Joanna Langille lsquoNeither Constitution Nor Contract Understanding the WTO by Examining the Legal
Limits on Contracting Out Through Regional Trade Agreementsrsquo (2011) 86 NYU Law Review 1482 at 1506 9 Ibid
10 William J Davey and Andre Sapir lsquoThe Soft Drinks Case The WTO and Regional Agreementsrsquo
(2009) 8 World Trade Review 5-23 at 20 The 1994 Understanding on the Interpretation of GATT Article XXIV gave power to the Dispute Settlement Body to review the consistency of preferential agreements with the WTO In addition the General Council Decision on the Transparency Mechanism for Regional Trade Agreements prescribed that RTA parties furnish the CRTA with detailed information to allow for greater transparency
6
According to the WTO 349 RTAs have been notified to the Committee on Regional
Trade Agreements11Of these 206 were notified in terms of Article XXIV of the GATT
1994 107 under GATS Article V and the remainder - 36 - under the Enabling
Clause However there are many more RTAs that are in existence at present than
those which have been notified to the WTO The WTO itself admits that there are
almost 500 RTAs in existence worldwide12 Each WTO member is a party to at least
one RTA13 Both developed and developing country members of the WTO are party
to RTAs signifying that the motivation for entering into these agreements is rather
complex
(b) Why Regional Integration
Countries choose to engage in regional trade forums because it is easier to reach
agreement on concessions at a micro rather than a macro level There are less
chances of reaching deadlock in a smaller grouping than in a larger one where
divergent interests compete for airplay in a small space14 In addition many
developing countries are unhappy with the progress of trade negotiations in the
WTO especially in light of the deadlock reached in the Doha Round Ismail notes
that the GATT failed developing countries through the defensive role of developed
countries15 Developed countries are pushing for deeper trade and investment
commitments from developing countries than is now possible given the divisions in
the WTO Thus by engaging in RTA negotiation and formation developing countries
are better empowered to tap into developed country markets However a secondary
11
WTO Secretariat lsquoRegional Trade Agreements Information Systemrsquo last accessed from httprtaiswtoorgUIPublicAllRTAListaspx on 16 August 2015 12
WTO lsquoSecretariat Facts and Figuresrsquo last accessed from httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm on 16 August 2015 13
WTO lsquoRegional Trade Agreementsrsquo op cit 14
Ildiko Virag-Neumann lsquoRegional Trade Agreements and the WTOrsquo 7th International Conference on
Management Enterprise and Benchmarking June 5-6 2009 Budapest Hungary 385 15
Faizel Ismail Reforming the World Trade Organisation Developing Countries in the Doha Round (2009) 12
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
Electronic copy available at httpssrncomabstract=2712338
2
II INTRODUCTION
Regional integration refers to the outcome of processes including cooperative
arrangements the implementation of intergovernmental treaties and market-led
processes through which economies of countries in a region become more closely
interconnected1 These outcomes are essential to building markets creating robust
and diverse economies increasing opportunities for growth and attracting new
sources of investment finance Regional integration allows for economies of scale
promotes intra-regional trade and ensures that regional bodies have a greater role in
global economic governance If well and truly grounded in the socio-economic
realities in which member states operate regional integration is more likely to
succeed and enhance the trade liberalisation agenda2 However it can pose serious
dangers especially given the multiple membership regional integration models
prevailing at present These multiple commitments can also lead to jurisdictional
conflict and non-compliance
lsquoThe presence of multiple regional courts with overlapping functions and
jurisdiction may by itself defeat the whole purpose of establishing the
respective regional organisations as economic zones to spearhead and
accelerate the growth and economy of the people It is not an incentive
to foreign investors who prefer certainty and predictability of decisions
in the event a dispute emerges calling for judicial intervention In this
kind of situation there is no certainty or predictability especially given
1 African Development Bank Group (ADB Group) ldquoRegional Integrationrdquo
httpwwwafdborgentopics-and-sectorstopicsregional-integration (Accessed 26022015) 2 Donald A Calvert lsquoHow the Multilateral Trade System Under the World Trade Organisation is
Attempting to Reconcile the Contradictions amp Hurdles Posed by Regional Trade Agreements An Analysis of Article XXIV of the General Agreement on Tariffs amp Tradersquo (Unpublished Masters Thesis George Mason University 2002)
3
that one is not even sure of which court one should go to if a dispute
arisesrsquo3
The overriding role of dispute settlement bodies in regional integration initiatives is to
foster predictability transparency accountability and participation of all member
states as well as individuals conducting business in them Sound governance and
remedial measures are necessary for regional integration and development Clarity
around trade rules breeds a culture of trust which in turn facilitates greater trade
while the availability of a platform to protect the rights of investors creates
opportunities for further investment
This paper consists of five parts The first section introduces the subject of regional
integration at the multilateral and examines why countries establish regional
economic communities In essence it details the arrangements that lead to the
formation of these agreements and how this impacts on global trade relations Part
two continues in the vein of background material through a discussion of the African
Economic Community (AEC) and how it is to be achieved before zooming in on the
formation of the Tripartite Free Trade Area (TFTA) It principally lays the contextual
basis for the establishment of the TFTA within the broader debate of the
establishment of the AEC The third unit provides an assessment of the problems
and prospects faced by regional economic communities in their attempts to address
disputes at the regional level It raises pertinent issues affecting the manner in which
disputes can be resolved Part four draws attention to the dispute resolution
mechanisms of COMESA SADC and the EAC as well as that of the soon to be
established Tripartite Dispute Settlement Body The aim is to draw out the salient
3 John Eudes Ruhangisa lsquoThe East African Court of Justicerdquo in Rok Ajulu The Making of a Region
The Revival of the East African Community (2005) 107
4
features of dispute settlement in these communities to inform future trade dispute
settlement measures Finally the fifth section consolidates the points raised and
uses them as a basis for providing concrete recommendations for the TFTA dispute
settlement mechanism
III THE MULTILATERAL TRADING SYSTEM AND REGIONALISM
(a) WTO Rules on Regional Integration
The legal provisions which regulate the formation and subsistence of regional trade
agreements lie in a number of WTO Agreements the General Agreement on Tariffs
and Trade (GATT) the General Agreement on Trade in Services (GATS) and the
Agreement on Differential and More Favourable Treatment Reciprocity and the
Fuller Participation of Developing Countries (the Enabling Clause) Article XXIV of
the GATT sets out how RTAs should operate There are three major obligations in
this regard both internal and external trade requirements as well as a notification
responsibility In order for an RTA to pass WTO muster it should seek to reduce
substantially all barriers to trade amongst its members4 Barriers to trade in respect
of non-RTA members who are also WTO members must not be more restrictive than
those obtaining prior to the conclusion of the RTA5The WTO has to be notified of the
intention to create an RTA subject to review by the Committee on Regional Trade
Agreements (CRTA)6
The Enabling Clause provides for special and differential treatment for developing
countries as long as the notification procedure is followed In addition no added
4 Article XXIV8 of the GATT 1994
5 Article XXIV5 of the GATT 1994
6 Article XXIV7 of the GATT 1994
5
barriers to trade should be created following such treatment With respect to trade in
services Article V of the GATS provides for essentially the same requirements as
obtain under GATT Article XXIV However arguments have been raised to the effect
that the GATS is more lenient in its regional integration requirements than the
GATT7 While it is useful to have these arrangements in place they are not without
their faults The CRTA has never come to a consensus regarding the compliance of
any RTA which it has been asked to take notice of8 In addition the notification
procedure does not seem to be working well For instance the Tripartite Free Trade
Area is under negotiation in Africa yet no notification procedures have as yet been
implemented Members often notify the CRTA after the formation of the RTA or
choose not to make a notification at all9 This limits the formation of RTAs in that the
procedure is only effective insofar as states choose to comply However attempts
have been made to improve the rules pertaining to regional trade agreements10
Nevertheless the prescriptions described above are useful in delineating the limits
within which an RTA will be recognised Despite its shortcomings the monitoring and
compliance mechanism offered by the CRTA is necessary in reigning in rogue
elements in the multilateral trading system
7 See Petros Constantinos Mavroidis lsquoDo Not Ask Too Many Questions The Institutional
Arrangements for Accommodating Regional Integration Within the WTOrsquo in E Kwan Choi and James C Hartigan (eds) Handbook of International Trade (2004) for a more detailed discussion 8 Joanna Langille lsquoNeither Constitution Nor Contract Understanding the WTO by Examining the Legal
Limits on Contracting Out Through Regional Trade Agreementsrsquo (2011) 86 NYU Law Review 1482 at 1506 9 Ibid
10 William J Davey and Andre Sapir lsquoThe Soft Drinks Case The WTO and Regional Agreementsrsquo
(2009) 8 World Trade Review 5-23 at 20 The 1994 Understanding on the Interpretation of GATT Article XXIV gave power to the Dispute Settlement Body to review the consistency of preferential agreements with the WTO In addition the General Council Decision on the Transparency Mechanism for Regional Trade Agreements prescribed that RTA parties furnish the CRTA with detailed information to allow for greater transparency
6
According to the WTO 349 RTAs have been notified to the Committee on Regional
Trade Agreements11Of these 206 were notified in terms of Article XXIV of the GATT
1994 107 under GATS Article V and the remainder - 36 - under the Enabling
Clause However there are many more RTAs that are in existence at present than
those which have been notified to the WTO The WTO itself admits that there are
almost 500 RTAs in existence worldwide12 Each WTO member is a party to at least
one RTA13 Both developed and developing country members of the WTO are party
to RTAs signifying that the motivation for entering into these agreements is rather
complex
(b) Why Regional Integration
Countries choose to engage in regional trade forums because it is easier to reach
agreement on concessions at a micro rather than a macro level There are less
chances of reaching deadlock in a smaller grouping than in a larger one where
divergent interests compete for airplay in a small space14 In addition many
developing countries are unhappy with the progress of trade negotiations in the
WTO especially in light of the deadlock reached in the Doha Round Ismail notes
that the GATT failed developing countries through the defensive role of developed
countries15 Developed countries are pushing for deeper trade and investment
commitments from developing countries than is now possible given the divisions in
the WTO Thus by engaging in RTA negotiation and formation developing countries
are better empowered to tap into developed country markets However a secondary
11
WTO Secretariat lsquoRegional Trade Agreements Information Systemrsquo last accessed from httprtaiswtoorgUIPublicAllRTAListaspx on 16 August 2015 12
WTO lsquoSecretariat Facts and Figuresrsquo last accessed from httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm on 16 August 2015 13
WTO lsquoRegional Trade Agreementsrsquo op cit 14
Ildiko Virag-Neumann lsquoRegional Trade Agreements and the WTOrsquo 7th International Conference on
Management Enterprise and Benchmarking June 5-6 2009 Budapest Hungary 385 15
Faizel Ismail Reforming the World Trade Organisation Developing Countries in the Doha Round (2009) 12
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
3
that one is not even sure of which court one should go to if a dispute
arisesrsquo3
The overriding role of dispute settlement bodies in regional integration initiatives is to
foster predictability transparency accountability and participation of all member
states as well as individuals conducting business in them Sound governance and
remedial measures are necessary for regional integration and development Clarity
around trade rules breeds a culture of trust which in turn facilitates greater trade
while the availability of a platform to protect the rights of investors creates
opportunities for further investment
This paper consists of five parts The first section introduces the subject of regional
integration at the multilateral and examines why countries establish regional
economic communities In essence it details the arrangements that lead to the
formation of these agreements and how this impacts on global trade relations Part
two continues in the vein of background material through a discussion of the African
Economic Community (AEC) and how it is to be achieved before zooming in on the
formation of the Tripartite Free Trade Area (TFTA) It principally lays the contextual
basis for the establishment of the TFTA within the broader debate of the
establishment of the AEC The third unit provides an assessment of the problems
and prospects faced by regional economic communities in their attempts to address
disputes at the regional level It raises pertinent issues affecting the manner in which
disputes can be resolved Part four draws attention to the dispute resolution
mechanisms of COMESA SADC and the EAC as well as that of the soon to be
established Tripartite Dispute Settlement Body The aim is to draw out the salient
3 John Eudes Ruhangisa lsquoThe East African Court of Justicerdquo in Rok Ajulu The Making of a Region
The Revival of the East African Community (2005) 107
4
features of dispute settlement in these communities to inform future trade dispute
settlement measures Finally the fifth section consolidates the points raised and
uses them as a basis for providing concrete recommendations for the TFTA dispute
settlement mechanism
III THE MULTILATERAL TRADING SYSTEM AND REGIONALISM
(a) WTO Rules on Regional Integration
The legal provisions which regulate the formation and subsistence of regional trade
agreements lie in a number of WTO Agreements the General Agreement on Tariffs
and Trade (GATT) the General Agreement on Trade in Services (GATS) and the
Agreement on Differential and More Favourable Treatment Reciprocity and the
Fuller Participation of Developing Countries (the Enabling Clause) Article XXIV of
the GATT sets out how RTAs should operate There are three major obligations in
this regard both internal and external trade requirements as well as a notification
responsibility In order for an RTA to pass WTO muster it should seek to reduce
substantially all barriers to trade amongst its members4 Barriers to trade in respect
of non-RTA members who are also WTO members must not be more restrictive than
those obtaining prior to the conclusion of the RTA5The WTO has to be notified of the
intention to create an RTA subject to review by the Committee on Regional Trade
Agreements (CRTA)6
The Enabling Clause provides for special and differential treatment for developing
countries as long as the notification procedure is followed In addition no added
4 Article XXIV8 of the GATT 1994
5 Article XXIV5 of the GATT 1994
6 Article XXIV7 of the GATT 1994
5
barriers to trade should be created following such treatment With respect to trade in
services Article V of the GATS provides for essentially the same requirements as
obtain under GATT Article XXIV However arguments have been raised to the effect
that the GATS is more lenient in its regional integration requirements than the
GATT7 While it is useful to have these arrangements in place they are not without
their faults The CRTA has never come to a consensus regarding the compliance of
any RTA which it has been asked to take notice of8 In addition the notification
procedure does not seem to be working well For instance the Tripartite Free Trade
Area is under negotiation in Africa yet no notification procedures have as yet been
implemented Members often notify the CRTA after the formation of the RTA or
choose not to make a notification at all9 This limits the formation of RTAs in that the
procedure is only effective insofar as states choose to comply However attempts
have been made to improve the rules pertaining to regional trade agreements10
Nevertheless the prescriptions described above are useful in delineating the limits
within which an RTA will be recognised Despite its shortcomings the monitoring and
compliance mechanism offered by the CRTA is necessary in reigning in rogue
elements in the multilateral trading system
7 See Petros Constantinos Mavroidis lsquoDo Not Ask Too Many Questions The Institutional
Arrangements for Accommodating Regional Integration Within the WTOrsquo in E Kwan Choi and James C Hartigan (eds) Handbook of International Trade (2004) for a more detailed discussion 8 Joanna Langille lsquoNeither Constitution Nor Contract Understanding the WTO by Examining the Legal
Limits on Contracting Out Through Regional Trade Agreementsrsquo (2011) 86 NYU Law Review 1482 at 1506 9 Ibid
10 William J Davey and Andre Sapir lsquoThe Soft Drinks Case The WTO and Regional Agreementsrsquo
(2009) 8 World Trade Review 5-23 at 20 The 1994 Understanding on the Interpretation of GATT Article XXIV gave power to the Dispute Settlement Body to review the consistency of preferential agreements with the WTO In addition the General Council Decision on the Transparency Mechanism for Regional Trade Agreements prescribed that RTA parties furnish the CRTA with detailed information to allow for greater transparency
6
According to the WTO 349 RTAs have been notified to the Committee on Regional
Trade Agreements11Of these 206 were notified in terms of Article XXIV of the GATT
1994 107 under GATS Article V and the remainder - 36 - under the Enabling
Clause However there are many more RTAs that are in existence at present than
those which have been notified to the WTO The WTO itself admits that there are
almost 500 RTAs in existence worldwide12 Each WTO member is a party to at least
one RTA13 Both developed and developing country members of the WTO are party
to RTAs signifying that the motivation for entering into these agreements is rather
complex
(b) Why Regional Integration
Countries choose to engage in regional trade forums because it is easier to reach
agreement on concessions at a micro rather than a macro level There are less
chances of reaching deadlock in a smaller grouping than in a larger one where
divergent interests compete for airplay in a small space14 In addition many
developing countries are unhappy with the progress of trade negotiations in the
WTO especially in light of the deadlock reached in the Doha Round Ismail notes
that the GATT failed developing countries through the defensive role of developed
countries15 Developed countries are pushing for deeper trade and investment
commitments from developing countries than is now possible given the divisions in
the WTO Thus by engaging in RTA negotiation and formation developing countries
are better empowered to tap into developed country markets However a secondary
11
WTO Secretariat lsquoRegional Trade Agreements Information Systemrsquo last accessed from httprtaiswtoorgUIPublicAllRTAListaspx on 16 August 2015 12
WTO lsquoSecretariat Facts and Figuresrsquo last accessed from httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm on 16 August 2015 13
WTO lsquoRegional Trade Agreementsrsquo op cit 14
Ildiko Virag-Neumann lsquoRegional Trade Agreements and the WTOrsquo 7th International Conference on
Management Enterprise and Benchmarking June 5-6 2009 Budapest Hungary 385 15
Faizel Ismail Reforming the World Trade Organisation Developing Countries in the Doha Round (2009) 12
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
4
features of dispute settlement in these communities to inform future trade dispute
settlement measures Finally the fifth section consolidates the points raised and
uses them as a basis for providing concrete recommendations for the TFTA dispute
settlement mechanism
III THE MULTILATERAL TRADING SYSTEM AND REGIONALISM
(a) WTO Rules on Regional Integration
The legal provisions which regulate the formation and subsistence of regional trade
agreements lie in a number of WTO Agreements the General Agreement on Tariffs
and Trade (GATT) the General Agreement on Trade in Services (GATS) and the
Agreement on Differential and More Favourable Treatment Reciprocity and the
Fuller Participation of Developing Countries (the Enabling Clause) Article XXIV of
the GATT sets out how RTAs should operate There are three major obligations in
this regard both internal and external trade requirements as well as a notification
responsibility In order for an RTA to pass WTO muster it should seek to reduce
substantially all barriers to trade amongst its members4 Barriers to trade in respect
of non-RTA members who are also WTO members must not be more restrictive than
those obtaining prior to the conclusion of the RTA5The WTO has to be notified of the
intention to create an RTA subject to review by the Committee on Regional Trade
Agreements (CRTA)6
The Enabling Clause provides for special and differential treatment for developing
countries as long as the notification procedure is followed In addition no added
4 Article XXIV8 of the GATT 1994
5 Article XXIV5 of the GATT 1994
6 Article XXIV7 of the GATT 1994
5
barriers to trade should be created following such treatment With respect to trade in
services Article V of the GATS provides for essentially the same requirements as
obtain under GATT Article XXIV However arguments have been raised to the effect
that the GATS is more lenient in its regional integration requirements than the
GATT7 While it is useful to have these arrangements in place they are not without
their faults The CRTA has never come to a consensus regarding the compliance of
any RTA which it has been asked to take notice of8 In addition the notification
procedure does not seem to be working well For instance the Tripartite Free Trade
Area is under negotiation in Africa yet no notification procedures have as yet been
implemented Members often notify the CRTA after the formation of the RTA or
choose not to make a notification at all9 This limits the formation of RTAs in that the
procedure is only effective insofar as states choose to comply However attempts
have been made to improve the rules pertaining to regional trade agreements10
Nevertheless the prescriptions described above are useful in delineating the limits
within which an RTA will be recognised Despite its shortcomings the monitoring and
compliance mechanism offered by the CRTA is necessary in reigning in rogue
elements in the multilateral trading system
7 See Petros Constantinos Mavroidis lsquoDo Not Ask Too Many Questions The Institutional
Arrangements for Accommodating Regional Integration Within the WTOrsquo in E Kwan Choi and James C Hartigan (eds) Handbook of International Trade (2004) for a more detailed discussion 8 Joanna Langille lsquoNeither Constitution Nor Contract Understanding the WTO by Examining the Legal
Limits on Contracting Out Through Regional Trade Agreementsrsquo (2011) 86 NYU Law Review 1482 at 1506 9 Ibid
10 William J Davey and Andre Sapir lsquoThe Soft Drinks Case The WTO and Regional Agreementsrsquo
(2009) 8 World Trade Review 5-23 at 20 The 1994 Understanding on the Interpretation of GATT Article XXIV gave power to the Dispute Settlement Body to review the consistency of preferential agreements with the WTO In addition the General Council Decision on the Transparency Mechanism for Regional Trade Agreements prescribed that RTA parties furnish the CRTA with detailed information to allow for greater transparency
6
According to the WTO 349 RTAs have been notified to the Committee on Regional
Trade Agreements11Of these 206 were notified in terms of Article XXIV of the GATT
1994 107 under GATS Article V and the remainder - 36 - under the Enabling
Clause However there are many more RTAs that are in existence at present than
those which have been notified to the WTO The WTO itself admits that there are
almost 500 RTAs in existence worldwide12 Each WTO member is a party to at least
one RTA13 Both developed and developing country members of the WTO are party
to RTAs signifying that the motivation for entering into these agreements is rather
complex
(b) Why Regional Integration
Countries choose to engage in regional trade forums because it is easier to reach
agreement on concessions at a micro rather than a macro level There are less
chances of reaching deadlock in a smaller grouping than in a larger one where
divergent interests compete for airplay in a small space14 In addition many
developing countries are unhappy with the progress of trade negotiations in the
WTO especially in light of the deadlock reached in the Doha Round Ismail notes
that the GATT failed developing countries through the defensive role of developed
countries15 Developed countries are pushing for deeper trade and investment
commitments from developing countries than is now possible given the divisions in
the WTO Thus by engaging in RTA negotiation and formation developing countries
are better empowered to tap into developed country markets However a secondary
11
WTO Secretariat lsquoRegional Trade Agreements Information Systemrsquo last accessed from httprtaiswtoorgUIPublicAllRTAListaspx on 16 August 2015 12
WTO lsquoSecretariat Facts and Figuresrsquo last accessed from httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm on 16 August 2015 13
WTO lsquoRegional Trade Agreementsrsquo op cit 14
Ildiko Virag-Neumann lsquoRegional Trade Agreements and the WTOrsquo 7th International Conference on
Management Enterprise and Benchmarking June 5-6 2009 Budapest Hungary 385 15
Faizel Ismail Reforming the World Trade Organisation Developing Countries in the Doha Round (2009) 12
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
5
barriers to trade should be created following such treatment With respect to trade in
services Article V of the GATS provides for essentially the same requirements as
obtain under GATT Article XXIV However arguments have been raised to the effect
that the GATS is more lenient in its regional integration requirements than the
GATT7 While it is useful to have these arrangements in place they are not without
their faults The CRTA has never come to a consensus regarding the compliance of
any RTA which it has been asked to take notice of8 In addition the notification
procedure does not seem to be working well For instance the Tripartite Free Trade
Area is under negotiation in Africa yet no notification procedures have as yet been
implemented Members often notify the CRTA after the formation of the RTA or
choose not to make a notification at all9 This limits the formation of RTAs in that the
procedure is only effective insofar as states choose to comply However attempts
have been made to improve the rules pertaining to regional trade agreements10
Nevertheless the prescriptions described above are useful in delineating the limits
within which an RTA will be recognised Despite its shortcomings the monitoring and
compliance mechanism offered by the CRTA is necessary in reigning in rogue
elements in the multilateral trading system
7 See Petros Constantinos Mavroidis lsquoDo Not Ask Too Many Questions The Institutional
Arrangements for Accommodating Regional Integration Within the WTOrsquo in E Kwan Choi and James C Hartigan (eds) Handbook of International Trade (2004) for a more detailed discussion 8 Joanna Langille lsquoNeither Constitution Nor Contract Understanding the WTO by Examining the Legal
Limits on Contracting Out Through Regional Trade Agreementsrsquo (2011) 86 NYU Law Review 1482 at 1506 9 Ibid
10 William J Davey and Andre Sapir lsquoThe Soft Drinks Case The WTO and Regional Agreementsrsquo
(2009) 8 World Trade Review 5-23 at 20 The 1994 Understanding on the Interpretation of GATT Article XXIV gave power to the Dispute Settlement Body to review the consistency of preferential agreements with the WTO In addition the General Council Decision on the Transparency Mechanism for Regional Trade Agreements prescribed that RTA parties furnish the CRTA with detailed information to allow for greater transparency
6
According to the WTO 349 RTAs have been notified to the Committee on Regional
Trade Agreements11Of these 206 were notified in terms of Article XXIV of the GATT
1994 107 under GATS Article V and the remainder - 36 - under the Enabling
Clause However there are many more RTAs that are in existence at present than
those which have been notified to the WTO The WTO itself admits that there are
almost 500 RTAs in existence worldwide12 Each WTO member is a party to at least
one RTA13 Both developed and developing country members of the WTO are party
to RTAs signifying that the motivation for entering into these agreements is rather
complex
(b) Why Regional Integration
Countries choose to engage in regional trade forums because it is easier to reach
agreement on concessions at a micro rather than a macro level There are less
chances of reaching deadlock in a smaller grouping than in a larger one where
divergent interests compete for airplay in a small space14 In addition many
developing countries are unhappy with the progress of trade negotiations in the
WTO especially in light of the deadlock reached in the Doha Round Ismail notes
that the GATT failed developing countries through the defensive role of developed
countries15 Developed countries are pushing for deeper trade and investment
commitments from developing countries than is now possible given the divisions in
the WTO Thus by engaging in RTA negotiation and formation developing countries
are better empowered to tap into developed country markets However a secondary
11
WTO Secretariat lsquoRegional Trade Agreements Information Systemrsquo last accessed from httprtaiswtoorgUIPublicAllRTAListaspx on 16 August 2015 12
WTO lsquoSecretariat Facts and Figuresrsquo last accessed from httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm on 16 August 2015 13
WTO lsquoRegional Trade Agreementsrsquo op cit 14
Ildiko Virag-Neumann lsquoRegional Trade Agreements and the WTOrsquo 7th International Conference on
Management Enterprise and Benchmarking June 5-6 2009 Budapest Hungary 385 15
Faizel Ismail Reforming the World Trade Organisation Developing Countries in the Doha Round (2009) 12
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
6
According to the WTO 349 RTAs have been notified to the Committee on Regional
Trade Agreements11Of these 206 were notified in terms of Article XXIV of the GATT
1994 107 under GATS Article V and the remainder - 36 - under the Enabling
Clause However there are many more RTAs that are in existence at present than
those which have been notified to the WTO The WTO itself admits that there are
almost 500 RTAs in existence worldwide12 Each WTO member is a party to at least
one RTA13 Both developed and developing country members of the WTO are party
to RTAs signifying that the motivation for entering into these agreements is rather
complex
(b) Why Regional Integration
Countries choose to engage in regional trade forums because it is easier to reach
agreement on concessions at a micro rather than a macro level There are less
chances of reaching deadlock in a smaller grouping than in a larger one where
divergent interests compete for airplay in a small space14 In addition many
developing countries are unhappy with the progress of trade negotiations in the
WTO especially in light of the deadlock reached in the Doha Round Ismail notes
that the GATT failed developing countries through the defensive role of developed
countries15 Developed countries are pushing for deeper trade and investment
commitments from developing countries than is now possible given the divisions in
the WTO Thus by engaging in RTA negotiation and formation developing countries
are better empowered to tap into developed country markets However a secondary
11
WTO Secretariat lsquoRegional Trade Agreements Information Systemrsquo last accessed from httprtaiswtoorgUIPublicAllRTAListaspx on 16 August 2015 12
WTO lsquoSecretariat Facts and Figuresrsquo last accessed from httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm on 16 August 2015 13
WTO lsquoRegional Trade Agreementsrsquo op cit 14
Ildiko Virag-Neumann lsquoRegional Trade Agreements and the WTOrsquo 7th International Conference on
Management Enterprise and Benchmarking June 5-6 2009 Budapest Hungary 385 15
Faizel Ismail Reforming the World Trade Organisation Developing Countries in the Doha Round (2009) 12
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
7
reason for developing country participation in these arrangements may be the need
to move away from a developed country dominated multilateral trading system to
one in which they have a multi-polar trade regime
Initially the WTO encouraged the formation of RTAs because it was envisaged that
they would be useful building blocks for the multilateral trading system This is
evident in the fact that free trade areas and customs unions were sanctioned since
the formation of the GATT in 1947 The provisions of the GATT 1947 relating to
RTAs were imported into the GATT 1994 Customs unions were deemed to be
similar to single countries in trade negotiations as they maintained a common
external tariff against non-members16 However questions began to arise relating to
whether RTAs created or diverted trade
Trade creation involves the generation of gains when consumers are able to
purchase from the cheapest and most competitive source of supply This occurs
when RTA members switch from inefficient domestic producers and import from
more efficient producers from other members of the RTA17 Conversely trade
diversion occurs when members switch imports from low-cost production in the
multilateral system and import more from higher-cost producers in the partner
countries18 This in turn means that there are fewer welfare gains from regional
trade Although trade diversion may occur after the formation of an RTA the fact that
states are continually signing these agreements is testimony to their commitment to
liberalising trade albeit at a smaller scale Trade diversion and trade creation can
operate within the same regional framework however the net effect when the two
16
Michael J Trebilcock Understanding Trade Law (2011) 44 17
Pal P lsquoRegional Trade Agreements in a Multilateral Trade Regime An Overviewrsquo (2004) 2 last accessed from httpwwwnetworkideasorgfeathmmay2004survey_paper_RTApdf on 16 August 2015 18
Ibid
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
8
are balanced is what will signify whether the regional trade agreement is successful
or not
IV AFRICAN REGIONAL INTEGRATION
(a) The African Economic Community
The African regional economic integration debate stems from the formation of the
Organisation of African Unity in 196319 The Lagos Plan of Action concluded
following a 1980 Summit visualised as a blueprint for the economic and political
development of Africa20 African statesmen envisaged the formation an African
Economic Community (AEC) A treaty for the establishment of the AEC was signed
in 199121 The Abuja Treaty was an improvement on the Lagos Plan of Action in that
it was more specific regarding economic social and cultural development in Africa
The treaty aimed at the linear progression of the AEC based on existing regional
arrangements to an Africa-wide economic bloc22 In 2002 the African Union (AU)
replaced the OAU with the commitment to regional integration being iterated in the
new treaty23 This led to the establishment of the New Partnership for Africarsquos
Development (NEPAD) but it still hinged on development and economic integration
at a sub-regional level
19
Formed following the independence of African states from their colonial rulers to spearhead development and the African Renaissance See generally Henry Kyambalesa and Mathurin C Houngnikpo Economic Integration and Development in Africa (2006) 20
Victor AO Adetula lsquoRegional integration in Africa Prospect for Closer Cooperation Between West East and Southern Africarsquo (2004) Paper presented at the meeting of IDASAFREDSKORPSET Research Exchange Programme ndash Governance and Democracy Johannesburg 11-12 21
Treaty Establishing the African Economic Community 1991 also known as the Abuja Treaty 22
The treaty foresaw regional integration progressing in six stages the strengthening of existing regional arrangements tariff liberalisation and phasing out of non-tariff barriers regionally the formation of free trade areas and customs unions tariff liberalisation amongst the regional groupings the formation of a monetary union and eventually the formation of the African Economic Community 23
Constitutive Act of the African Union
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
9
Discussions on regional economic integration in Africa tend to focus more on issues
around the value-add in combining economic might within the region to the
detriment of the legal issues ensuing there from24 Even more glaring in the
omissions is the ldquoafter thoughtrdquo accorded to dispute settlement both within the
region itself and at the level of the disjuncture between regional and national
systems of law in relation to trade Furthermore while regional trade agreements are
established in terms of the law of the World Trade Organisation (WTO) there is
sometimes a gap between the two legal systems It is important therefore that
regional trade agreements adhere to the law of the WTO which while imperfect
provides a standard according to which decisions can be made and enforced
While deliberations on the Tripartite Free Trade Area (TFTA)25 were preceded by the
AEC Treaty and NEPAD the TFTA will feed into the broader African regional
integration agenda since it is one of the blocks through which full African integration
will be achieved The idea is to use the TFTA coalition as a springboard from which
full regional integration will ensue It envisages a progression along the lines of that
of the European Union from free trade area to customs union then common market
and eventually monetary and political integration Nevertheless given the recent
challenges experienced in the Eurozone as well as the slow progress in
implementing existing integration initiatives on the continent it is time to reassess
the best way forward and define the ldquoAfrican wayrdquo of integration26 African leaders
need to move away from abstract and grandiose notions to more pragmatic solutions
to the integration conundrum We should not ignore the lessons learnt from the
24
Richard F Oppong Legal Aspects of Economic Integration in Africa (2011) 12 25
Proposed amalgamation of the Common Market for Eastern and Southern Africa (COMESA) the East African Community (EAC) and the Southern African Development Community (SADC) 26
The WTO has noted that African countries are lagging behind in terms of effective regional integration models ndash WTO The WTO and Preferential Trade Agreements From Co-existence to Coherence (2011)
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
10
ldquoEuropeanrdquo and ldquoASEANrdquo ways for example but it is critical that the approach of the
continent reflects the realities of economic development and the global economy27
This is why it then becomes necessary to also include the development of an
appropriate trade dispute resolution mechanism based on what works for Africa
(b) The Tripartite Free Trade Area
In 2008 Heads of State and Government of the Common Market for Eastern and
Southern Africa (COMESA) the East African Community (EAC) and the Southern
African Development Community (SADC) agreed to establish a free trade area
extending from Cape to Cairo and encompassing all twenty six members of the three
groupings A Draft Tripartite Free Trade Area (TFTA) Agreement was finalised in
December 201028 TFTA negotiations commenced at a Summit held in South Africa
in June 2011 The objectives of the TFTA as stated at the first COMESA-EAC-SADC
Tripartite Summit in October 2008 are to promote trade in the region through
creation of a wider market increase inter-REC and extra-REC investment flows
enhance competitiveness of the region in the globalised environment due to
improved production improve efficiency and value addition develop cross-regional
infrastructure develop inter-REC financial and capital systems which will deepen
financial intermediation and strengthen the regionrsquos negotiating positions in
multilateral and bilateral trade arrangements29
27
Catherine Grant and Clarence Siziba lsquoAfrican Leaders Commit to Better Trade Relationsrsquo (2012) last accessed from httpwwwthetradebeatcomauthorscatherine-grant-makokeraitem36-african-leaders-commit-to-better-trade-relations on 16 August 2015 28
Draft Agreement Establishing the COMESA-EAC-SADC Free Trade Area (2010) last accessed from httpwwwtralacorgwp-contentblogsdir12files2011uploadsDraft_Tripartite_FTA_Agreement_Revised_Dec_2010pdf on 16 August 2015 29
Article 4 of the Draft TFTA Agreement
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
11
Essentially this means that the proponents of the TFTA envision a development
through trade outcome This is not much different from the vision of African
statesmen since the inception of the OAU however at present the discussion had
been enlarged to include greater competitiveness for the region as well as a better
negotiating position The overarching goal of the three regional organisations is to
expand trade alleviate poverty and improve the quality of life of the population of the
Member States The TFTA is also an effort to rationalise the problem of overlapping
memberships of the RECs in the region COMESA has 19 Member States of which
eight are also members of SADC and four of the EAC the EAC has five members
with four being members of COMESA and one a member of SADC and lastly
SADC has 15 members eight of which belong to COMESA as well and one to the
EAC30
The TFTA negotiations were launched on 12 June 2011 at the Second Tripartite
Summit The Tripartite process will adopt a three-pronged approach based on
market integration in the TFTA infrastructure development and industrial
development31 The negotiations are to take place in two phases (i) trade in goods
and (ii) the free movement of business persons in two separate but parallel tracks
followed by (ii) services intellectual property rights competition policy and trade-
related areas32 Even as the negotiating agenda may be laudable it is disheartening
to note that the negotiating strategy is not being pushed at REC level but rather at
30
COMESA Members Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Madagascar Malawi Mauritius Rwanda Seychelles Sudan Swaziland Uganda Zambia Zimbabwe EAC Members Burundi Kenya Rwanda Tanzania Uganda SADC Members Angola Botswana Democratic Republic of Congo Lesotho Malawi Mauritius Mozambique Namibia Seychelles South Africa Swaziland Tanzania Zimbabwe (Madagascar currently suspended) 31
COMESA EAC and SADC Communiqueacute of the Second COMESA-EAC-SADC Tripartite Summit 12 June 2011 Johannesburg South Africa 32
COMESA EAC and SADC Declaration Launching the Negotiations for the Establishment of the Tripartite Free Trade Area 12 June 2011
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
12
the individual country plane The TFTA Agreement was signed on June 10 2015
While negotiations as to the meat of the AGrement are ongoing it is necessary to
look at the implications that its establishment has on trade relations not only among
member states but also between the proposed block and external partners
Granted the Draft Agreement is merely ldquoa draftrdquo however negotiations are moving
forward based on its contents and it is likely to form a huge bulk of the final
agreement upon signature at a future date33
What states undertake to do in terms of the Agreement should be enforceable lsquoA
rules-based regime provides certainty predictability and transparency for regional
trade and investmentrsquo34 The TFTA is a rules-based initiative in that it is established
in terms of GATT Article XXIV and the Enabling Clause Twenty of the twenty-six
states involved in the formulation of the TFTA are also members of the WTO35
hence such compliance is required States are better able to pursue their obligations
where there is clarity in terms of rules of engagement This is not to say that political
will is not important in state relations however at the most basic level of state
interaction lucid regulations assist in state practice
Effective dispute resolution and implementation of decisions will aid in this process
Indeed former Director General of the WTO Michael Moore said that lsquodispute
settlement is the backbone of a multilateral trading systemrsquo36 With a dispute
settlement mechanism the commitments that states make in trade agreements are
33
Article 50 of the Draft Tripartite Agreement provides that the Agreement shall come into effect upon ratification by two thirds of the members the trading bloc 34
T Hartzenberg lsquoIntroductionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) iii 35
Ethiopia Comoros Sudan Libya Seychelles and Eritrea are not members yet Of the 6 non-members 5 have Observer status at the WTO The first three have already started accession negotiations 36
Quoted by Amos Saurombe lsquoRegional Integration Agenda for SADC ldquo Caught in the Winds of Changerdquo Problems and Prospectsrsquo (2009) 4 Journal of International Commercial Law and Technology 103
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
13
ascribed even more practical value Trade dispute settlement in Africa has not
received as much airplay as it should In fact in some jurisdictions trade disputes
have not been heard This is in spite of the existence of trade dispute resolution
mechanisms within the three regional economic communities (RECS) For a variety
of reasons member states in the three RECS clearly need to improve their
commitment to a rules-based regional integration agenda Integration not only
relates to the benefits stemming from the alliance but also the practical reality
around issues of compliance and the enforcement of agreements
V PROBLEMS AND PROSPECTS FOR EFFECTIVE DISPUTE RESOLUTION
(a) Requirements for Effective Dispute Resolution
The fact that the TFTA is a rules-based agglomeration is advantageous in that it is
clear what members ought to adhere to in terms of their rights and obligations Just
as the WTO system is plain in its trade liberalisation and non-discrimination ethos
clear rules will allow member states to conduct themselves according to the dictates
of the TFTA Agreement37 This is also useful given the fact that while states are in
principle equal in international law the reality is something different altogether A
rules-based approach allows even weaker states to experience somewhat the same
equality and participation at the multilateral level38
An institution designed for the resolution of disputes must subsist for there to be a
practical dimension to the dispute settlement understanding It is not enough to have
rules without an adjudication process separate from the day to day operation of an
37
The trade liberalisation agenda of the WTO rests on the standard of non-discrimination which is amplified in two principles most-favoured nation (MFN) and national treatment (NT) ndash Articles I and III of the GATT 38
Gerhard Erasmus lsquoThe Tripartite FTA Requirements for Effective Dispute Resolutionrsquo in Trudi Hartzenberg et al Cape to Cairo Making the Tripartite Free Trade Area Work (2011) 86
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
14
organisation An independent judicial arm will ensure that states comply with the
mandate of the organisation39 Rules of procedure are also very important as they
will determine the adjudication of disputes and how decisions will be implemented
The manner in which disputes are resolved is also instrumental in the determination
of the effectiveness of a dispute resolution mechanism Under the GATT
consultations and diplomatic efforts were used to resolve disputes40 In the WTO
the dispute settlement mechanism outlines powers procedures and outcomes in the
realm of trade dispute resolution41 There are 4 major steps in the WTO dispute
settlement procedure consultation panel proceedings appellate review and
implementation and enforcement42 This system envisages the settlement of
disputes as between parties Only at such point as they fail to do so will a Panel be
established Decisions under the GATT were reached via consensus where there
was no consensus there could be no resolution At the WTO the Panel Report is
adopted through the reverse consensus method this means that the Report will be
adopted should there be no consensus against its adoption43 This method is useful
in ensuring that decisions are reached expeditiously
Finally the enforcement of rulings is probably the most important element of the
dispute settlement conundrum Rules and legal action do not accomplish much
without the implementation of decisions Indeed for the rules to be deemed to have
39
FB William Kelly lsquoAn Independent Judiciary The Core of the Rule of Lawrsquo International Centre for Criminal Justice Reform and Criminal Justice Policy Vancouver Canada last accessed from httpwwwicclrlawubccaPublicationsReportsAn_Independant_Judiciarypdf on 16 August 2015 40
Erasmus lsquoThe Tripartite FTArsquo at 88-89 41
Annex 2 - Understanding on Rules and Procedures Governing the Settlement of Disputes also known as the Dispute Settlement Understanding (DSU) 42
Jeanne J Grimmett lsquoDispute Settlement in the World Trade Organization An Overviewrsquo CRS Report for Congress September 14 2006 last accessed from httpfpcstategovdocumentsorganization74910pdf on 16 August 2015 43
Erasmus lsquoThe Tripartite FTArsquo op cit See also Bruce Wilson lsquoCompliance by WTO Members with Adverse WTO Dispute Settlement Rulings The Record to Datersquo (2007) 10 Journal of International Economic Law 397-403
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
15
an effect and acquire the respect and recognition they deserve enforcement should
be seen to not only be possible but also effective44
The WTO dispute settlement system may not be the best however it is certainly the
most instructive when it comes to the resolution of disputes in the area of
international trade45 It is not a standard according to which all other trade dispute
settlement bodies should function but rather a useful springboard from which the
debate on trade dispute settlement at the regional level can be launched
(b) Challenges Faced by the RECs
The question of increased markets through regional integration has always been
high on the agenda of the three RECs This is primarily because of the low levels of
industrialisation that result in countries trading in primary or simple manufactured
products asymmetric product complementarities in the region and the small
populations in many countries The question of expanded and new markets in the
wake of the TFTA is also challenged by the low levels of intra-REC trade There are
reports of SADC and the EAC showing the highest levels of intra-REC trade in
Africa46 but the nature of that trade has to be taken into consideration Economic
polarisation is a real threat with South Africa Kenya and Egypt in a likely position to
reap most benefits from the TFTA as they currently have a high trade surplus with
other countries in the region
44
Wilson lsquoCompliance by WTO Membersrsquo op cit 45
Surya P Subedi lsquoWTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Lawrsquo in Duncan French Matthew Saul Nigel D White (eds) International Law and Dispute Settlement New Problems and Techniques (2010) Subedi points out that critics argue that this system is ineffective insofar as monitoring compliance of great powers is concerned 46
African Union ldquoTrade Liberalisation Investment and Economic Integration in African Regional Economic Communities Towards the African Common Market and Economic Communityrdquo AU Conference of Ministers of Trade 6
th Ordinary Session 29
th October ndash November 2010 Kigali
Rwanda
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
16
There is also the challenge of protectionist trade regimes in the region and the over-
dependence on customs revenue Tariffs contribute 30 of the total central
government recurrent revenue in Tanzania Uganda and Zimbabwe and 40 in
Comoros Mauritius and Zambia47 These countries may feel pressured to keep their
import tariffs high in order to protect their revenue sources The TFTA demands that
countries either expand their effective tax bases or find alternative revenue sources
especially in circumstances where there might be a contraction of previously
protected industries due to the TFTA48 However this impact may be fairly limited
given the low levels of intra-regional trade and the existing preferential tariff
arrangements under bilateral agreements and REC FTAs
The TFTA also seeks to eliminate the problem of overlapping membership of RECs
and the multiplicity of trading arrangements There will be difficulties due to the
different levels of integration of COMESArsquos 19 members 14 are trading at a FTA
level while three are still trading under the Preferential Trading Area (PTA) Despite
the launch of the COMESA Customs Union (CU) in 2010 it is yet to be implemented
SADC has 15 members (including Madagascar which is currently suspended) it
launched its FTA in 2008 and 12 are implementing the FTA while three are not yet
doing so49
The biggest challenge comes from the countries that are not part of any trading
arrangement in the region50 but there is also the issue of CUs versus FTA
arrangements Where for instance the EAC might be charging high tariffs on
47
Bohela Lunogelo amp AV Mbilinyi lsquoConvergence of Comesa-SADC-EAC Regional Frameworksrsquo The Economic and Social Research Foundation Paper presented at the Annual Forum for Private Public and Academia Partnership on Trade Policy and Negotiations organised by the Ministry of Industry Trade and Marketing Tanzania on 26 October 2009 48
Tshidiso Disenyana lsquoTowards an EAC COMESA and SADC Free Trade Area Issues and Challengesrsquo SAIIA Occasional Paper October 2009 49
Angola DRC and Malawi 50
Angola DRC Eritrea and Ethiopia
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
17
external imports COMESA and SADC are apparently in support of free trade with
countries outside their regions51 Problems which may rise between states include
access to markets through what Braude calls lsquomembership back doorsrsquo52 This can
occur for instance through the dumping of Egyptian products in Uganda through
Kenya Similarly problems could arise with products from South Africa entering the
EAC through Tanzania These are issues that would need to be addressed at the
negotiating stage to ensure that these lsquomembership back doorsrsquo are not used to the
detriment of other trade partners
Moreover the negotiation of trading arrangements with MERCOSUR and other
external parties also poses a threat to the TFTA53 This is particularly with regard to
the Economic Partnership Agreement (EPA) negotiations with the EU54 These have
revealed massive holes in the unity of the RECs with countries failing to harmonise
positions when dealing with the EU hence resulting in a patchwork of potential EPA
agreements
Limited human and financial capacity still plagues the RECs as well as their
members The negotiating capacity of member states in terms both of skills and
manpower is limited there are thin staff complements at the REC Secretariats and
51
United Nations Economic Commission for Africa (UNECA) ldquoFinal Report Study on the Establishment of Inter-RECrsquos Free Trade Areas in Africa Drawing on Lessons from the Comesa-SADC-EAC FTA Experiencerdquo UNECA Addis Ababa Ethiopia 2 May 2011 52
Wolfe Braude Regional Integration in Africa Lessons from the East African Community (2008) 256 53
Disenyana opcit 54
Scott McDonald amp Terrie Walmsley lsquoBilateral Free Trade Agreements and Customs Unions The Impact of the EU Republic of South Africa Free Trade Agreement on Botswanarsquo GTAP Working Papers Paper 28 last accessed from httpdocslibpurdueeducgiviewcontentcgiarticle=1028ampcontext=gtapwpampsei-redir=1ampreferer=http3A2F2Fscholargooglecoza2Fscholar3Fq3Dsouth2Bafrica2BEU2Btrade2Bagreement2BimpACT26hl3Den26as_sdt3D02C526as_vis3D1search=22south20africa20EU20trade20agreement20impACT22 on 16 August 2015
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
18
limited funds for research and analyses in preparation for the negotiations55 There
are also the financial demands associated with the creation of the TFTA such the
cost of providing the necessary infrastructure to facilitate trade and compensatory
and adjustment costs for those Member States that will be adversely affected56
These issues have not been canvassed by the RECs to date and may pose
problems in the future if not properly addressed
While there seems to be substantial support and enthusiasm for the TFTA across the
wider region political will and commitment to its implementation is a different issue
This problem has long manifested itself in the individual RECs and is mostly
attributed to the unwillingness by African states to cede any amount of sovereignty to
a regional entity and to the prioritisation of domestic interests over regional ones57
The rhetoric of political will in favour of integration has not been sufficiently met with
the requisite action
In the preparations for the TFTA it has been reported that countries have been
missing meetings and have also been late in submitting their responses to
documents58 It is likely that the issue of tariff liberalisation will also meet with some
resistance from domestic constituencies particularly in protected industries and this
will have significant impact on the commitment to liberalise Coupled with the issue
of political will and commitment in general is that of political instability in the region -
a factor which TFTA Member States will have to contend with as it affects trade
55
OECD and WTO lsquoAid for Trade Case Story UK ndash Negotiating the COMESA-EAC-SADC Tripartite FTArsquo 31 January 2011 last accessed from httpwwwoecdorgaidfortrade47407301pdf on 23 August 2015 56
UNECA opcit 57
Mzukisi Qobo lsquoThe Challenges of Regional Integration in Africa In the Context of Globalisation and the Prospects for a United States of Africarsquo ISS Paper 145 June 2007 last accessed from httpdspacecigilibraryorgjspuibitstream123456789311121PAPER145Hpdf1 on 16 August 2015 58
Ibid
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
19
Zimbabwe is a good example while Malawi is also going through some significant
political upheavals Both countries have sought derogations from their SADC FTA
commitments59
The EAC is part of the Great Lakes Region which is prone to conflict It is thus
necessary to explore the nexus between trade and security to ensure that as
markets open up with the TFTA initiative trade benefits are not lost to criminal
activities60 If criminal activities are not protected against there could be serious
repercussions for the viability of the T-FTA which could indeed result in regional
instability and be detrimental to regional trade Sea-borne trade is still very important
to Africa yet East Africa is battling with piracy (COST) Such disruptions to trade
could lead to disputes arising between states regarding the movement of people
(refugees and economic immigrants) border issues and greater trade facilitation
costs in certain countries compared to others to the detriment of the TFTA
In the move towards merging the three RECs institutional harmonisation will be a
challenge particularly as the current strategy on trade liberalisation leaves the RECs
free to pursue their integration agendas undisturbed A merger would entail
dissolution (at least in part) of the three RECs in favour of a new expanded one If
this is still to happen the approach has to be structured to make the process easier
when it is time61 A merger will entail a very extensive harmonisation programme
particularly given the different legal and institutional regimes subsisting in each REC
59
Staff Reporter lsquoFocus on the Tricks of Trade Hears SADCrsquo Mail amp Guardian 10 September 2011 last accessed from httpmgcozaarticle2011-09-10-focus-on-the-tricks-of-trade-centre-tells-sadc on 16 August 2015 60
Ruhangisa op cit at 101 61
An instructive discussion on harmonisation of laws is detailed by Polina Dlagnekova lsquoThe Need to Harmonise Trade-Related Laws Within Countries of the African Union An Introduction to the Problems Posed by Legal Divergencersquo Paper prepared for the Southern African Society of Legal
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
20
VI DISPUTE RESOLUTION AT THE REGIONAL LEVEL
(a) The COMESA Court of Justice
The Preferential Trade Area for Eastern and Southern Africa (PTA) established in
1981 became COMESA in 1993 in line with Article 29 of the PTA itself which called
for the development of the PTA into a common market and eventually into an
economic community62 COMESA was established primarily as a vehicle for trade
and economic development and its objectives are economically orientated63 It is
interesting to note that one of the key objectives is to contribute towards the
establishment progress and the realisation of the objectives of the African Economic
Community64 Evidently the overall integration strategy of the AEC is important to
COMESA members
The COMESA Court of Justice (CoJ) which is composed of seven judges appointed
by the Authority and whose function is to ensure adherence to law in the
interpretation and application of the COMESA Treaty as well as to adjudicate upon
all matters referred to it pursuant to the COMESA Treaty Article 19 tasks the CoJ
with the interpretation and application of treaty law exclusive jurisdiction over
matters arising in and out of the COMESA Treaty is granted to the court65 In
addition the court has jurisdiction to give Advisory Opinions regarding questions of
law relating to the Treaty66 Disputes between COMESA employees and the
Historianrsquos Session on ldquoHarmonisation of Laws within the African Unionrdquo South African Law Teachers Conference held at the University of Pretoria Jan 2008 62
Preamble to the COMESA Treaty 63
Article 3 of the COMESA Treaty 64
Article 3(f) of the COMESA Treaty At its establishment COMESArsquos main priority was the creation of a FTA by 2000 and this was achieved In 2009 the COMESA Heads of State launched the COMESA Customs Union but this has yet to enter into force 65
Article 34(1) 66
Article 32(1)
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
21
Authority may also be heard by the court67 All judgements of the CoJ are final and
conclusive and not open to appeal68 Decisions of the court have precedence over
those of national courts of Member states69The seat of the CoJ is in Khartoum
Sudan Seven judges appointed by the COMESA Authority based on their
qualifications as distinguished judicial officers in their national courts comprise the
court70 They are appointed for a period of 5 years which period is renewable for a
second term71
Both the COMESA and EAC Courts provide for arbitration where commercial
disputes have arisen72 Arbitration allows disputes to be resolved without resorting to
litigation which is expensive and time-consuming By contrast SADC and presently
the TFTA Agreement do not allow individuals to directly access the court for
redress73 This could pose major problems for the application of treaty law between
the RECS as they come together in the TFTA
According to Article 23 of the DSU the DSB has exclusive jurisdiction over any
disputes arising from the WTO covered agreements74 At the WTO only states may
bring disputes for adjudication by the DSB individuals do not have the same
privilege However at the regional level individuals may approach international
tribunals for redress75 Individuals may not always be able to lobby their
governments to institute proceedings against violating states hence giving private
67
Article 27 68
Article 31 69
Article Art 29(2) 70
Article 20 71
Article 21(1) 72
Article 28 of the COMESA Treaty and Article 32 of the EAC Treatty Ruhangisa lsquoThe East African Court of Justicersquo 96 73
The SADC Tribunal was suspended in August 2012 Article 3 of the Tripartite Dispute Settlement ANNEX provides that it applies only to states 74
WTO Charter GATT GATS and TRIPS 75
See Article 30 of the Treaty for the Establishment of the EAC and Article 26 of the COMESA Treaty Until recently Artticle 18 of the SADC Protocol on Tribunal also applied
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
22
parties standing before regional courts allows for greater justice to be served Given
the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level
In Eastern and Southern African Trade Bank v Ogang76an employee of the PTA
Bank sought an order suspending a decision of the bankrsquos board of directors The
bank claimed that the court had no jurisdiction over it on the basis that it was an
independent institution not an organ of COMESA The court rejected this argument
citing the fact that the bank was created under the auspices of Article 174 of the
COMESA Treaty meaning that it was indeed an organ of COMESA This case has
two-fold significance it affirmed the right of individuals to appear before the court
and highlighted that the CoJ is also charged with oversight of relational issues
relating to the structure and functions of all Treaty organs
(b) The East African Court of Justice
Trade and economic integration in the EAC can be traced as far back as the colonial
era77 In 1917 Kenya and Uganda entered into a Customs Union which was joined by
the then Tanganyika (now Tanzania) in 1927 and together they formed the East
African Community in 1967 This EAC was dissolved in 1977 owing to trade
polarisation effects arising from the economic dominance of Kenya and the lsquopolitical
ideological and personal differences between the respective leadersrsquo78 The current
EAC was established in 1999 through the signing of the Treaty for the Establishment
76
Eastern and Southern African Trade Bank v Ogang 2001 East African Law Reports 46 77
Ahmed Mohiddin ldquoIntroduction Deepening Political Integration in the East African Communityrdquo in Ahmed Mohiddin Deepening Regional Integration of the East African Community (2005) 1 78
C Jacobeit et al Overlapping Membership in COMESA SACU and SADC 17
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
23
of the East African Community The EACrsquos agenda on integration goes beyond
economic integration to incorporate political integration79 The economic integration
agenda has been aggressively pursued and the EAC is unusual in that it chose to
start its integration with a customs union rather than a free trade area
The East African Court of Justice (EACJ) was established in terms of the Treaty
Establishing the East African Community80 Like the CoJ the court is charged with
the interpretation and application of EAC Treaty Law81 Exclusive jurisdiction over
matters arising in and out of the EAC Treaty is granted to the EACJ82Decisions of
the court are final binding and conclusive and not open to appeal83 Fifteen judges
are appointed for a maximum of seven years each84 This is quite a large number of
judges for such a small community of states and possibly adds to greater expenses
when the court is in session However a remarkable fact is that the amendment of
the EAC Treaty in 2006 created a First Instance Division and an Appellate Division
composed of ten and five judges respectively85
The decisions of the EACJ relating to the interpretation and application of the EAC
Treaty have precedence over those of national courts86 Partner states may request
advisory opinions from the EACJ likewise the EAC Council87 While the EAC first sat
in 2001 it still has neither a permanent seat nor sitting The court only sits when the
79
In the Treaty the Member States undertake to establish a Customs Union a Common Market subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial commercial infrastructural cultural social political and other relations of the Partner States to the end that there shall be accelerated harmonious and balanced development and sustained expansion of economic activities the benefit of which shall be equitably shared 80
E Mugisa C Onyango and P Mugoya ldquoAn Evaluation of the Implementation of the East African Community Customs Unionrdquo Final Report March 2009 81
Article 23(1) of the EAC Treaty 82
Article 38(1) 83
Article 35(1) 84
Article 25(1) 85
Article 24(2) 86
Article 33 (2) 87
Article 36
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
24
need to do so arises The temporary seat of the court is in Arusha Tanzania but
other sittings have been held in Mombasa Dar es Salaam and Kampala88 Such a
scenario raises pertinent questions relating to the envisaged TFTA Dispute
Settlement Body as partners will have to decide on a strategic location for their court
Following the decision in Prof Peter Anyangrsquo Nyongrsquoo and Others v Attorney
General of Kenya and Others89 the jurisdiction of the court was expanded to include
an appeal from a national division In the Nyongrsquoo case the court decided that
despite having no locus standi the citizens of Kenya could challenge the
appointment of the Kenyan representatives to the East African Parliament The EAC
Council reacted to this decision by calling for amendments to the Courtrsquos power
resulting in the 2006 Amendments90 This in turn spurred calls for the EACJ to allow
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners and the EAC91 A move to harmonise
the laws of the TFTA member states would be a cumbersome process especially if
pitched at the level that the EAC wants to achieve A less onerous but equally
challenging move would be the harmonisation of trade and investment policies That
way a TFTA-wide trade agenda could be sculpted as against external trade
partners
Subsequent to the 2006 Amendments the East African Law Society levelled a
challenge against the EAC Council based on the legality of the ratification
88
James T Gathii JT African Regional Trade Agreements as Legal Regimes (2011) 268-9 89
Prof Petter Anyangrsquo Nyongrsquoo and Others v Attorney General of Kenya and Others EACJ Ref No 1 of 2006 (30 March 2007) The claimants contended that Kenya had violated Article 50 of the EAC Treaty calling for representative appointment of member s of the EAC Legislature 90
Gathii African Regional Trade Agreements at 275 These include the restructuring of the court into the First Instance and Appellate Divisions the addition of a two-month time limit to cases brought by legal and natural persons and limiting the courtrsquos jurisdiction to jurisdiction conferred by the Treaty on organs of partner states 91
Ibid at 270
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
25
procedures that were employed for the amendments92 The EACJ concluded that the
ratification process that was used in making the amendments constituted an
infringement of the amendment rules in the Treaty because the private sector and
civil society were not consulted during the drafting of the amendments However the
court cautioned that despite the lack of procedurally sound enactment the
amendments were in line with the Treatyrsquos objectives
In James Katabazi and 21 Others v Secretary General of the East African
Community and Another93 the court dealt with the lawfulness of the detention of
Ugandan prisoners charged with treason Jurisdiction of the court over human rights
matters was challenged by the respondents who contended that no such jurisdiction
had been granted in terms of the EAC Treaty The court held that despite this
limitation on its power the dispute fell under EAC law hence a decision could be
made The extension of the courtrsquos authority into the realm of human rights went
beyond the ordinary scope of the EACJrsquos work However it highlights the
progressive nature of the courtrsquos decision-making which fact could be useful in
encouraging a more independent role for the TFTA tribunal This is a direct contrast
to the political interference occasioned in the Nyongrsquoo case Nonetheless the test of
the continued independence of the court still remains to be seen Ground-breaking
judgments tend to aggravate state parties
(c) The SADC Tribunal
The SADC Trade Protocol is the primary determinant of the SADC economic
agenda Its objectives include liberalisation of trade ensuring efficient production
92
East African Law Society and Others v Attorney General of the Republic of Kenya and Others EAC Judgment Ref No 3 of 2007(Sept 2008) 93
James Katabazi and 21 Others v Secretary General of the East African Community and Another EACJ Judgment Ref No 1 of 2007 (1 Nov 2007)
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
26
within SADC improving the climate for domestic cross-border and foreign
investment enhancing of economic development diversification and
industrialisation and establishing a Free Trade Area (FTA) by 200894 The intended
FTA was launched at the SADC Heads of State and Government Summit in August
2008
The SADC Tribunal was established to interpret the provisions of the SADC Treaty
and to adjudicate on any disputes arising out of its provisions and those of subsidiary
instruments95 The Tribunal was made up of ten members of high judicial standing in
their countries of origin appointed for a five-year term renewable for the same period
upon expiry if the first term96 Five of these were regular members while the others
acted as a pool from which substitutes for regular members who were unable to
execute their duties could be drawn97 The Tribunal could be constituted by three
judges98 It only sat when cases were submitted to it99 Such a model for the
appointment and service of judges would be a convenient solution for cases where
time and resource constraints arise leading to delays in the judicial process
According to the SADC Treaty the Tribunal could give advisory opinions at the
request of the SADC Summit or Council100 The Tribunal had jurisdiction over
disputes between states101 disputes between legal and natural persons and
states102 disputes between states and the community103 and disputes involving the
94
Article 2 of SADC Trade Protocol 95
Article 1(g) and 16(1) of the SADC Treaty 96
Article 13 and Article 6(1) of the SADC Protocol on Tribunal 97
Article 3(2) of the SADC Treaty 98
Article 3(3) of the Protocol on Tribunal 99
Article 3(4) 100
Art 16(4) 101
Article 15(1) 102
Article 18 103
Article 17
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
27
Tribunal and its employees104 However it is notable that the Tribunal did not have
original jurisdiction unlike the EACJ Disputes could only be referred to the Tribunal
upon the exhaustion of local remedies105
The decisions of the Tribunal were deemed to be final and binding106 This is
remarkable in that the Tribunal was further directed to develop its own case law with
due regard to general principles of international law107 Such a ground-breaking
directive was good in that it allowed the court to create its own precedents and
develop community law in such a way that progressive justice could be occasioned
However this provision was also to prove to be the Achilles heel of the Tribunal
through the challenge that arose in the cases relating to Zimbabwersquos land reform
programme
In Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe108the
Tribunal heard a challenge by a group of displaced landowners to the land reform
programme in Zimbabwe The Supreme Court of Zimbabwe decided that
Amendment 17 of the Zimbabwe Constitution barring appeal to a court to challenge
the acquisition of land by the state was in line with government policy regarding land
reform109 Since domestic jurisdiction of the courts had been ousted the Tribunal
determined that it had jurisdiction to hear the matter Counsel for the Government of
Zimbabwe alleged that the Tribunal had no proper basis for jurisdiction since this
was a human rights issue for which there was no provision in either the SADC
Treaty or the Protocol on the Tribunal Nevertheless the Tribunal noted that it was
104
Article 19 105
Article 15 106
Article 16(5) 107
Article 15(3) 108
Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe SADC (T) Case No 22007 [2008] SADCT2 (28 Nov 2008) 109
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement (12406) [2008] ZWSC 1 (22 Jan 2008)
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
28
mandated to develop its own case law with due regard for the principles of
international law In addition the SADC Treaty called on member states to act in
accordance with human rights democracy and the rule of law110 Consequently the
Tribunal could hear the matter and make a determination on the merits
The Tribunal decided that the applicants had been discriminated against on the
ground of race hence the Zimbabwean government owed them fair compensation
for their land Zimbabwe challenged this conclusion on two bases that it had not
ratified the Protocol on the Tribunal and that the Tribunal did not formally exist since
the SADC Summit had not determined it Article 16 of the SADC Treaty states that
notwithstanding the provisions of Article 22 which provides that each Protocol is
binding on members who have acceded to it the Protocol on the Tribunal forms an
integral part of the Treaty111 This means that the ratification argument is
unsustainable since accession to the Protocol is not the only way in which states can
be bound by it Furthermore the fact that Zimbabwe nominated Justice Antonia
Guvava to the Tribunal collapses the contention that Zimbabwe did not believe the
Tribunal was in existence112 This argument may have been sustained only if
Zimbabwe had not acquiesced to the Tribunalrsquos jurisdiction through defending the
matter in Windhoek Even so the appointment of a member of the Tribunal was
testimony to the fact that Zimbabwe recognised its existence
Following the failure of the Zimbabwean government to comply with the decision of
the Tribunal a declaration regarding this breach was made in June 2009 and
reported it to the Summit113 Despite this move however a further case relating to
110
Article 4(c) 111
Articles 22(2) and 16 (2) of the SADC Treaty 112
Gathii African Regional Trade Agreements at 291 113
William Campbell and Another v The Republic of Zimbabwe SADC (T) Case No 32009 [2009] SADCT1 (5 June 2009)
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
29
the land reform programme was heard by the Tribunal in 2010114 In the latter case
the Tribunal found that there were further acts of non-compliance
One of the applicants in the Campbell case tried to have the order of the Tribunal
enforced in Zimbabwe115 The court reaffirmed the decision in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land Land Reform and
Resettlement barring appeal to a court regarding forcible expropriation of land by the
government in pursuit of its land reform agenda It was reiterated that the land reform
lsquoprogramme despite its administrative and practical shortcomings is quintessentially
a matter of public policy in Zimbabwe conceived well before the country attained its
sovereign independencersquo116 It is interesting that the court averred to the discordant
manner in which the land reform programme had been implemented yet chose to
dismiss the Gramara appeal While bowing to the dictates of the doctrine of
separation of powers is commendable the decision of the court not to challenge the
executive highlights the tensions that exist between judicial orders made at regional
level and the call for execution at domestic level
However the decisions of South African courts to allow the enforcement of the
Tribunalrsquos decision in South Africa added a new dimension to SADC community law
that is the enforcement of Tribunal decisions through national courts of member
states117 This is pursuant to Article 32 of the Protocol on the Tribunal which
114
Fick v Zimbabwe Ruling SADC (T) Case No 012010 [2010] (July 16 2010) 115
Gramara (Pvt) Ltd and One Other v The Government of the Republic of Zimbabwe and Two Others (HC 3309) ZWHHC 1 (26 January 2010) 116
Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Land Reform and Resettlement at 15 117
Gerhard Erasmus ldquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrdquo TRALAC Working Paper No S12WP092012 2 Louis Fick v Government of Zimbabwe in Pretoria High Court 77812009 ndash rulings by the SADC Tribunal registered ie recognised and enforceable in terms of Article 32 of the Protocol on the SADC Tribunal by the High Court of South Africa Government of the Republic of Zimbabwe v Fick amp Others (65711) [2012] ZASCA 122 (20 SEPTEMBER 2012) ndash appeal of the Zimbabwe government against the North Gauteng High Courtrsquos
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
30
provides inter alia that member states shall take measures to ensure execution of
the decisions of the Tribunal
The Zimbabwean government held SADC at ransom by refusing to participate in any
proceedings involving the Tribunal until the Protocol on the Tribunal was ratified by
at least ten of the fifteen SADC states118 Subsequently the SADC Summit
announced a review of the terms of reference of the Tribunal by the World Trade
Institute Advisors in August 2010 and thereby a suspension of the Tribunal119 The
suspension was extended in May 2011 as well as in August 2012 At the latter
Summit it was decided that a new Protocol be negotiated to restrict individual
access to the court and limit its jurisdiction120 lsquoSADC governments for the most part
sat idly by seemingly pleased to let Zimbabwe take the lead in destroying a judicial
body that could one day issue decisions against them as wellrsquo121 Up until its demise
the SADC Tribunal heard 15 cases most of which involved disputes with its
employees Only one trade-related case ever came before the court ndash a case
involving trade facilitation measures adopted in the DRC however it was not heard
because the application was made just before the suspension of the Tribunal122
What happened with the SADC Tribunal could set an example for the future of
dispute settlement bodies in the EAC and COMESA and going forward the
registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town was dismissed 118
Werner Scholtz lsquoReview of the Role Functions and Terms of Reference of the SADC Tribunalrsquo (2011) SADC Law Journal 197 Sean Christie lsquoSADC Leaders Slammed Over Tribunal Shutdownrsquo last accessed from httpmgcozaarticle2011-07-01-sadc-leaders-slammed-over-tribunal-shutdown on 16 August 2015 119
Nicole Fritz lsquoUp in Smoke The SADC Tribunal and the Rule of Law in the Regionrsquo South African Foreign Policy Initiative September 2012 3 120
Cathal Gilbert amp Karl Beck lsquoKilling Southern Africarsquos Human Rights Courtrsquo last accessed from httpwwwthetreadebeatcomcontent-typeopinion-analysisitem78-killing-southern-africa-s-human-rights-court on 16 August 2015 121
Ibid 122
Gerhard Erasmus lsquoAnother Chapter in the SADC Tribunal Saga South African Court confirms the Tribunalrsquos Costs Orderrsquo TRALAC Working Paper No S12WP092012 3
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
31
TFTA123 Business people and individuals need to be aware of their rights and
remedies within the Tripartite setup A regional court is an important instrument in
facilitating regional integration124 It is important that RTA judiciaries be allowed to
operate independently and efficiently without undue interference from political elites
(d) The Tripartite Dispute Settlement System
The Tripartite Dispute Settlement System is housed under the auspices of Article 38
of the Draft TFTA Agreement and Annex 13 of this Agreement However it must be
noted that the Ministerial Committee on Trade and Customs shall also hold dispute
settlement powers in relation to trade related matters in the TFTA125 How and in
what specific circumstances these powers will be exercised however is not
specified Article 38 favours the resolution of disputes through cooperation and
consultation126 Should dispute resolution under Article 38 fail recourse shall be had
to Annex 13 procedures127 An interesting aspect of Article 38 is the provision
granting supremacy of the Draft TFTA Agreement as against the Agreements of the
three RECs involved in the formation of the TFTA128 This means that the
Agreements of the three RECs will continue to subsist On the other hand the nature
of engagement between the three RECs and the TFTA is not entirely spelt out in the
Draft TFTA Agreement thus it remains to be seen what the practical implications of
this provision entail
123
OSISA lsquoAdvocacy on the SADC Tribunalrsquo last accessed from httpwwwosisaorghrdbregionaladvocacy-sadc-tribunal on 16 August 2015 124
Cathal Gilbert lsquoA Key Moment for SADCrsquos Tribunalrsquo last accessed from httpwwwthetradebeatcomcomponentk277-a-key-moment-for-sadc-s-tribunal on 16 August 2015 125
Article 37(1) of the Draft TFTA Agreement 126
Article 38(1) 127
Article 38(3) 128
Article 38(4) - In the event of inconsistency or a conflict between this Agreement and the treaties and instruments of COMESA EAC and SADC this Agreement shall prevail to the extent of the inconsistency or conflict
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
32
In the three RECs individuals and private organisations were allowed to the
approach DSB after exhausting local remedies However the suspension of the
SADC Tribunal has left this avenue open only to legal and natural persons in the
EAC and COMESA In the TFTA as in the WTO only states may file disputes with
the DSB129 Perhaps standing should be given to both natural and legal persons at
the TFTA level given the nature of trade in Africa as alluded to above
Similarities exist between the WTO dispute settlement system and that of the TFTA
Both systems envisage the resolution of disputes following a four stage process130
Consultation sand consultation periods are similar During consultations good
offices conciliation and mediation may be engaged in an attempt to resolve a
conflict Upon the failure of consultations to resolve a dispute any of the parties to a
dispute can request that a Panel be established to consider the matter Submissions
arguments and rebuttals are made on paper however oral arguments may be
invited131 After a hearing the Panel issue an interim report which is available for
comment from the parties to the dispute following which a Final Report with
Recommendations will be issued132 Arbitration is an option which can be used to
avert the expense and time involved in adversarial dispute resolution Clearly the
WTO is followed in this dispute resolution process
Differences do however exist between the two bodies Dispute settlement at the
TFTA is concerned with a violation of TFTA law while that at the WTO involves the
covered agreements133 At the WTO requests for consultations are sent directly to
the DSB while at the TFTA they are sent to the Chief Executive Officers of the three
129
Article 3 of Annex 13 Article 1 of the DSU 130
Articles 5-7 of Annex 13 Articles 4-6 of the DSU 131
Article 11 of Annex 13 Article 12 of the DSU 132
Article 14 of Annex 13 Articles 15 and 16 of the DSU 133
Article 3 of Annex 13 Article 1 of the DSU
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
33
RECs134 This provision seems rather strange and onerous in light of the fact that the
relations between the REC-level dispute settlement bodies and that of the TFTA are
not clearly spelt out Hence it may be easier for aggrieved parties to submit requests
directly to the TFTA dispute settlement body The WTO provides for special
procedures for developing countries while the TFTA is mostly made up of
developing countries hence making it difficult to apply differential treatment The
Draft TFTA Agreement makes no mention of a Secretariat as one of the institutions
but it suddenly crops up in the DSU to exercise ldquofunctions and duties in support of
this Annexrdquo135 What the nature of these duties is is unclear Conversely the WTO
Secretariat assists with legal historical and procedural aspects of dispute
resolution136
VII CONCLUSION
The advent of the TFTA will go a long way towards achieving the dream of an
African Economic Community However prior to that a number of issues need to be
resolved first Some states which form part of the three RECs are not part of the
TFTA negotiations - for instance - Angola hence it will be difficult to reach mutually
viable solutions The fact that not all states are participating fully in existing RECs as
well as the TFTA negotiations also militates against proper regional integration
Some member states which will join the TFTA are not members of the WTO hence
the application of WTO law versus TFTA law will prove to be quite bothersome The
disparity in economic development as well as trade relations may contribute to
trade animosity amongst states
134
Article 4 of Annex 13 Article 4 of the DSU 135
Article 21 of Annex 13 136
Article 27 of the DSU
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
34
The need for an appropriate effective dispute resolution mechanism could not be
more pronounced given the challenges that are faced by the TFTA negotiating
parties Valuable lessons can be learnt in the dispute resolution realm of the existing
RECs It is hoped that the TFTA partners will be able to arrive at mutually agreeable
solutions following effective dispute resolution procedures Being a new court
however the TFTA mechanism will likely take a while to get off the ground and be
deemed credible Thus it would be expedient to choose cases that are not overly
contentious although this in some way curtails the carriage of justice This is
especially in light of the contentious cases involving Zimbabwe which in some way
contributed to the demise of the SADC Tribunal
A rules-based approach allows even weaker states to experience somewhat the
same equality and participation at the multilateral level Indeed for the rules to be
deemed to have an effect and acquire the respect and recognition they deserve
enforcement should be seen to not only be possible but also effective Use of the
reverse consensus method to adopt Panel reports as in the WTO would go a long
way in ensuring speedy resolution of disputes A secretariat may have to be
established to assist the dispute settlement body in executing its mandate
Given the fact that Africa has a large informal business sector allowing individuals to
approach the tribunals for the redress of international trade disputes would be a
positive step It would be ideal as well to incorporate the exhaustion of local
remedies in the TFTA prior to instituting proceedings at the regional level Allowing
appeals from national courts in order to strengthen judiciaries within the region and
harmonise the judicial systems of the partners may also be a useful strategy to
bolster the TFTA This would be instrumental for the TFTA if decisions can be
implemented at all levels more so in national courts A further dimension to this is
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
35
that such a decision results in states holding each other accountable By the same
token this could see Zimbabwe enforcing a decision against Zambia in its courts
Consequently member states will be unable to easily escape liability or be in
contempt of court if enforcement is universalised
The establishment of an appeal court in the TFTA would allow for greater
independence of the judicial body in charge of trade dispute settlement If support for
such a move can be garnered then the problems associated with the lack of political
will to enforce or implement decisions could be avoided Nevertheless it is important
to note that the balance between the sovereign integrity of states (a very important
component of the political reality facing African countries) and the separation of
powers in the super-regional institution is delicate Many of the states involved in the
formation of the TFTA are likely not interested in an extensive limit on their
sovereignty At the same time an appeal court which binds all national courts could
in fact thwart the regional integration initiative if not carefully managed However it is
important that this be kept in mind going forward
The parties will have to decide whether to have a permanent seat for the court It has
to be strategically located to ensure that states wishing to utilise dispute settlement
procedures are not unduly burdened given the vast area which the TFTA occupies
Whether sittings of the judges are held will also depend on the case load which will
come before the court The SADC model of five sitting and five stand-by judges in
addition to the directive for the Tribunal to develop its own case law can be drawn
from for guidance Such appointment and service of judges would be a convenient
solution for cases where time and resource constraints arise leading to delays in the
judicial process This is a compromise which allows for expeditious hearing of cases
while ensuring that the pool of judges can be called upon to hear cases Allowing the
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
36
court to create its own precedents and develop community law independently will
ensure that progressive justice is occasioned
The Nyongrsquoo decision led to the amendment of the EAC Treaty relating to the power
of the EACJ SADC Heads of State also suspended the Tribunal after it was deemed
to have over-stepped its mandate The suspension of the Tribunal has major
implications for the future of the TFTA since COMESA and the EAC have functional
regional courts The envisaged trade benefits emanating from the formation of the
large trade bloc stand to be torpedoed should a trade dispute settlement mechanism
not be properly framed Such political interference in judicial decision-making may
serve to curtail the powers of the court hence the Tripartite parties should beware
such intrusion and attempt to adhere to the separation of powers
Admittedly during the negotiation stage of the TFTA issues of trade dispute
settlement are unlikely to hold the fort for some time However it is important for
negotiators to bear in mind that the trade rules under discussion will require
interpretation and application thus the significance of clear dispute settlement
procedures cannot be gainsaid Whilst state sovereignty and national policy should
be respected any action which impacts negatively on the future Tripartite Dispute
Settlement Body - and thereby the regional economic bloc ndash should be dealt a heavy
blow to guard against the demise of an intra-regional court
While the establishment of a rules-based mechanism is laudable policies and
training on the ground need to be formulated to support the institutional apparatus It
is not enough to only have institutions their effective running requires a lot more
than just institutional structures The political will to ensure that decisions are carried
forward and implemented effectively in line with the overall goals of the TFTA is
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen
37
essential in guaranteeing the continued existence and respect for the dispute
settlement body Educational initiatives may also be necessary to allow TFTA
officials to empower those involved in trade processes people regarding the avenues
for redress available to them in the TFTA The peaceful settlement of disputes is an
important contributor to the success of the judicial body which will be inaugurated In
this way the regional court can play a big role in fostering confidence in the viability
of regional integration initiatives as well as allowing disgruntled parties the
opportunity to seek redress where conflicts have arisen